The Sydney Biennale has commenced after weeks of controversy over the severing of its relationship with Transfield, the company that runs the detention centre in Nauru and which will take over the one at Manus island.

To recap, several artists withdrew from the Biennale in protest over its sponsorship arrangement with Transfield due to the latter’s involvement in offshore detention of asylum-seekers. Activists also put pressure on the Biennale. The Biennale eventually severed ties with the company, and Luca Belgiorno-Nettis, whose father founded Transfield and also helped found the Biennale, stepped down as the Biennale chairman.

The federal government has since weighed in. Malcolm Turnbull described the actions of the boycotting artists as “vicious ingratitude” before Arts Minister George Brandis upped the ante considerably. Brandis has written to the Australia Council, the federal body in charge of arts funding, asking that it develop a policy to refuse federal funding to any arts body which “unreasonably” refuses private funding.

Phew! So … what to make of all this. Below are my thoughts on the Biennale boycott.

Transfield Holdings owns 12% of Transfield Services. It is apparently the second biggest shareholder in the latter company. 12% is a very sizeable shareholding in any public company, so it is in a position, if it wishes, to exercise some level of control over the actions of the latter. It also benefits considerably when the latter’s share price rises.

The Transfield Foundation is a company which runs the philanthropic activities of both Transfield Holdings and Transfield Services. Its money, therefore, is clearly linked to the profits of Transfield Services.

Arguments about targeting the wrong entity within Transfield make sense from a legal point of view. In law, they are separate entities. But the legal fiction that corporations are separated by a corporate veil cannot automatically be translated into a social fiction. In any case, the name “Transfield” conveys a certain meaning to the public, most obviously the public company that runs the detention centres.

Is Transfield Services doing anything wrong?

Transfield Services has won contracts to run Australia’s offshore detention centres. Offshore processing is probably legal under Australian law. In fact, it is the policy of both major political parties. So, it is arguable that Transfield is not doing anything wrong, and any disapproval of its relationship to the Biennale is a misguided tantrum.

Evidence also indicates that offshore detention in Nauru and Manus is cruel, in breach of both Articles 7 and 10. (The death of Reza Berati may indicate a breach of the right to life in Article 6, though that did not take place under Transfield’s watch).

So it is fair to link Transfield to human rights abuses. It has made a decision to get involved in a system of offshore arbitrary detention and will make considerable profits from that system. It is irrelevant that another company would have won the contract if Transfield had not. Nobody forced Transfield into its decision to bid for the contracts, and like any “person”, its decisions leave it open to consequences.

Here, the consequences for Transfield were the open condemnation of its activities by artists and others, as well as a great deal of publicity about its involvement in detention centres (which I suspect was not welcome).

Is the boycott inconsistent?

If Transfield can be targeted, other corporate sponsors might be targeted due to perceived wrongdoing. This argument assumes that many or even most corporations have skeletons in their closet, or even bright public skeletons that are apparent to anyone paying attention. And such an assumption is probably true, especially with multinational companies running multiple businesses in multiple sectors in multiple countries.

Brisbane’s Gallery of Modern Art is currently being criticised for its association with Santos, due to the latter’s environmental record. So far, the Gallery is staunchly standing beside Santos. Having said that, offshore processing is a particularly “hot” topic in Australia at the moment, so it is perhaps not surprising that Transfield was singled out in this way.

Any boycott can be criticised for inconsistency. Any boycotter can be challenged with the allegation that he or she is boycotting X while ignoring the far worse behaviour of Y. This criticism is commonly made of the Boycott, Divestment and Sanctions (BDS) movement against Israel.

However, taken to its logical end, such an argument indicates that one cannot boycott anything unless one first boycotts and highlights Russian expansion, Syrian aggression, Congolese rape, Sri Lankan impunity, Cambodian corruption and Ugandan homophobia (as possible examples).

There is a descending scale of horribleness before one can legitimately complain about offshore detention centres, and people will rank the horribles in different orders. Such an argument impugns the success of the anti-apartheid movement, given the role played by economic sanctions and boycotts in bringing an end to white minority rule in South Africa. No activist, except perhaps those whose special target is North Korea, can satisfy such scrutiny.

There are many and varied human rights issues in the world and in Australia, and they will all attract some sort of activist constituency. Individuals, alone or in concert, are entitled to compete in the marketplace of ideas in arguing that X or Y should be boycotted, regardless of whether X and Y are “better” than A or B.

One hopes that the strongest arguments prevail, though that is not a certainty. Human rights abuses and complicity in them are not justified by the fact that other human rights abuses are or might be worse. “Tu quoque” is a distraction rather than a valid excuse!

The Biennale takes government money

The Biennale continues to take government money rather than Transfield money, when it is undoubtedly true that the Australian government is far more responsible for offshore processing (or non-processing) policies than any company.

Yet public funding cannot be compared to private funding. Public funding comes from the taxpayer.* It is “our money”. If one is to reject public funding based on disapproval of certain government policies, one logically has to reject publicly funded projects such as Medicare and university education. One loses out twice if one is in fact a taxpayer, as one is rejecting the benefits of “good spending” due to disapproval of “bad spending”.

Furthermore, public funding serves a different purpose to philanthropy. The arts are funded as public goods. Corporate philanthropy has an element of quid pro quo: money is donated, and in return the corporation gets a warm and fuzzy brand boost. That is not a criticism of philanthropy: it is a description of it.

In any case, the arts are funded via the Australia Council, which is supposed to operate “at arm’s length”, independent of government interference. It has zero input into the government’s asylum seeker policy. Transfield is much more implicated in that policy than the Australia Council.

“Vicious ingratitude”

In making his accusation of “vicious ingratitude”, Malcolm Turnbull was perhaps thinking of his own role as a very rich person who enjoys the arts, and probably donates to them. But sponsorship is different to mere donation.

As noted above, there is a quid pro quo for a sponsor. The brand is associated with something “good”, even groovy or funky or posh, such as the arts. Associated perks such as free tickets accrue to employees and clients.

I agree here with the recent statement from the Biennale artists’ Working Group: Turnbull’s statement “sets up a master-servant relationship that doesn’t reflect what corporate sponsors gain from their relationships with artists and arts organisations”.

News Corp columnist Chris Kenny talks of Brandis’s actions as reinforcing freedom of expression? What, the inalienable right to sponsor? The right to inflict a brand against the conscience of an unwilling recipient? Compulsory gratitude is no great win for free expression!

Perhaps Brandis’s intervention is designed to save taxpayer money, as arts bodies should take private funds and save public dollars. Yet the Biennale, to my knowledge, has not asked for the government to make up the shortfall. Certainly, on a case by case basis, it is fair that public funding decisions be partly driven by the viability of an artistic event, and refusal of private funds might impact on that viability.

But that doesn’t justify Brandis’s broadbrush assault on freedom of conscience. Any person has a right to reject an association with a business that he or she disapproves of.

To be fair, Brandis has only threatened withdrawal of government funding. No individual has a right to government funding for their artistic endeavour. But the conditioning of government funding on depoliticised behaviour, and the rejection of personal conscience, is a strange tactic from an Attorney General who is openly committed to “freedom”.

This sort of government action could lead to a very skewed public debate, where the privately funded can express opinions freely, but the publicly funded are more muzzled. In any case, art should be opinionated and brash, not craven and cowed.

Finally, Brandis’s suggestion may be a tad hyprocritical, given that the Liberal Party, which receives certain amounts of public funding, rejects donations from tobacco companies, which operate a perfectly legal (but toxic) business.

AAP/Ehssan Veiszadeh

The right not to boycott

In resigning as Chair, Luca Belgiorno-Nettis talked of harassment of himself, the Biennale organisers, and I have heard talk on Twitter of harassment of non-boycotting artists.

I do not believe that anyone is suggesting that the boycotting artists engaged in such harassment. However, it is certainly possible that some harassment occurred.** Unfortunately, it is not always possible to prevent the misguidedly overenthusiastic from crossing the line into bullying and harassment, especially in this age of social medial.

People have a right to engage in a boycott, especially for reasons of conscience. It is also important to respect the right not to participate in or support a boycott.

Effectiveness of the boycott

The most common criticism of the boycott is that it has not been, and was never likely to be, effective. Offshore detention will continue as bipartisan policy for the foreseeable future, and Transfield will not terminate its Nauru and Manus contracts.

However, there is no “effectiveness” criterion for legitimate political action. Otherwise the opportunities for political action from the non-powerful are very limited indeed. Political action can be seen as means to an end, but also an end in itself, as an expression of the artists’ conscience in this case.

Furthermore, the boycott may be part of a long game. Transfield is already being targeted through the lobbying of industry pension funds. Those funds may or may not respond: so be it.

It may even be that the boycott is counterproductive, in the sense that the future of the Biennale in particular and corporate philanthropy in general may be threatened. This scenario strikes me as bit doomsday, but only time will tell. Like Transfield, the Biennale boycotters must also live with the consequences of their decisions.

A related criticism is that more effective and constructive protest actions were available. For example, the artists could have highlighted the injustices of offshore detention and even Transfield’s involvement through their art. Maybe. But, as my friend Brynn O’Brien has pointed out, such an approach smacks of “approved protest” in a “sanctioned space”, as opposed to unwieldy unpredictable protest which has clearly made Transfield and the government feel pretty uncomfortable.

Finally, given the extraordinary reaction from the government, it seems clear the Biennale boycott got under its skin. Otherwise, why the rush to try to shut down repeats of such action? Which means it may have had considerable effect. After all, weeks later many are still talking about it and discussing it and thinking about it. And I suspect that more people are going to pour through those Biennale doors.

My discussion at this point is influenced by a great Twitter discussion with Brynn O’Brien and Sean Mulcahy, which is “storified” here.

** I altered this paragraph on 25/3 as the original assertion of a belief that harassment had occurred was based on hearsay, especially on twitter. Furthermore, regarding the right not to boycott (and frankly the right to boycott): no one is free of attempted persuasion or even criticism. However, such activities should not cross a line into actual harassment and bullying.

This piece was first published at the Castan Centre for Human Rights’ blog.